Mr. Adolfus Amadi V. Mr. Friday Echendu Amadi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A.(Delivering the Leading Judgment)

This is an appeal by the Plaintiff against the decision of Hon. Justice E. K. Membere sitting in the High Court of Rivers State in the suit no PH/194/87. The judgment, the subject of this appeal dismissed the Plaintiff’s claim in its entirety.

The original plaintiff was chief Isaiah Amadi Ejekwu. He testified as PW.1, He died on 12th March, 1999 and was by order of the trial court substituted by ADOLPHUS AMADI. In the course of the trial the 2nd defendant died and his name was struck off processes as a party on 15th July, 1998. Before his death he had testified as DW.1 and he was duly cross-examined.

The Plaintiff, now Appellant, had sued the defendants, as they were then, claiming –

1. A declaration that the Plaintiff is entitled to the statutory right of occupancy over the piece of land called Ohia Wonka Rumuolosi situate at Eneka Obio Port Harcourt in the Rivers State of Nigeria.
2. The sum of N100,000.00 being damages for trespass committed by the defendants on the said land.

3, An injunction perpetually restraining the Defendants by themselves from further acts of trespass on the said land.

The Plaintiff took out the writ for himself and on behalf of Rumuolosi family in Rumuesara, Eneka. The parties are indigenes of Rivers State. They are of Ikwerre extraction. They all reside in Rumuesara Eneka. The defendants, now the Respondents in this appeal, belong to Rumuoparanwo family of Rurnuesara Eneka.

The parties at the trial court filed survey plans to identify the land in dispute. The Plaintiff/Appellant’s plan is Exhibit ‘A’ (id.1). PW .4, a practicising surveyor, did Exhibit ‘A’. The defence through the DW.4, a licensed surveyor, produced plan no ONC/89/Ro3 – LD, which is Exhibit ‘B’ in the proceedings.

The case of the Plaintiff/Appellant disclosed in the amended statement of claim is that the land in dispute is the portion of land verged RED on Exhibit ‘A’. The said portion verged RED together with two other portions verged GREEN on the plan respectively in the North and South of the disputed portion are said to belong to the Plaintiff/Appellant.

The Plaintiff averred in the amended statement of claim that they are grand children and descendants of Olosi; that the Sic OLOSI “was the first to clear the said land when it was a thick forest,” and that according to Ikwerre customary law the said Olosi, became the owner of the land. It is also averred in the amended statement of claim that the three sons of Olosi inherited the land in turn after the death of Olosi until it came to the turn of the plaintiff, “the current head of Rumuolosi family and the first son of Ejekwu” [one of the 3 sons of Olosi]. The amended statement further avers that in 1965 one Esau Echie Amadi (the father of the defendants’) approached Chief Nwachukwu (who was then the family head of the plaintiff family) with other principal members of Rumuolosi family still alive, to grant him a portion of “Ohia Nwunka Rumuolosi” to farm on. After much deliberation by the principal members of the Rumuolosi fanlily, which included the plaintiff, the land now in dispute and verged Red on the plan was granted to the late Mr. Esau Eche Amadi on a temporary native licence for fanning purposes only. The plaintiff contends that the license granted was subject, under Ikwerre native law and custom, to good behaviour and regular acknowledgement of ownership of the land by the plaintiff’s family. Late Esau Eche Amadi thanked the principal members of the plaintiff’s family with a jar of palm wine and a bottle of local gin.

It is further averred by the plaintiff that the said Esau Eche Amadi died during the Nigeria Civil war and that after the civil war in 1970 the plaintiff’s family took over the land the portion they earlier permitted the late Esau Eche Amadi to farm on. The amended statement of claim further avers that in 1972 the defendants entered the land without permission of the plaintiff’s family; that the plaintiff’s Rumuolosi family ordered them to vacate the land, and that upon the pleadings of the defendant of the Plaintiff’s family “forgave defendant’s misbehaviour and allowed them to continue farming on it with the acknowledgment that the plaintiff’s family owns the land”

Nothing again happened until April, 1987 when, according to the amended statement of claim, the plaintiff and other members of Rumuolosi family observed that the defendants had without permission of the plaintiff or other principal members of the Rumuolosi family, entered the and cleared the said land in dispute. They unlawfully proceeded to share the land in dispute among themselves and started preparations to erect permanent buildings thereon by depositing heaps of sand and block on the land. On or about the 22nd day of April, 1987, the defendants and/or their agents unlawfully commenced surveying the land, but were again challenged by the plaintiff and some members of his family.

The amended statement of claim further avers that with the help of the police from Elimgbu police station the defendants cordoned the disputed land and continued with the survey, and that the plaintiff and other members of Rumuolosi family were arrested and detained at the police station for 5 days. This is the trigger point that caused the plaintiff to take out the writ of summons against the defendants.

In their statement of defence the defendants aver that the original founder of the disputed land was their grand father/ancestor, Echie. That the said Echie was the first to clear the forest land, and that the said Echie had 3 sons – Nwanne Echie, Azunna Echie and Esau Echie. The defendants are the descendants or sons of Esau Echie. The defendant’s pleaded in the statement of defence that Nwanne Echie and Azunda Echie inherited the disputed land after the death of Echie, and that upon the death of Nwanne Echie and Azunda Echie between 1950 – 1960 the disputed land devolved to their father Esau Echie (also called Esau Amadi Echie or Esau Echie Amadi) in accordance with Ikwerre custom. They further averred that upon the death of their father, Esau Amadi Echie, they inherited the disputed land. In paragraphs 11, 12 and 13 of the statement of defence the defendant’s aver 11. Indeed in 1970 after the civil war, plaintiffs approached the defendants with the Customary wine and kola pleading to be allocated land to farm for that season only. The Defendants, according to tradition granted their request to farm and reap their crops for that season only. Plaintiffs complied with the terms.

But in 1972, to the surprise of the defendants, the plaintiffs for no just cause broke and entered the Defendant’s land in the same Ohia Wonka without the Defendant’s prior consent and cleared the land for farming. The Defendants reported the matter to Elder Isaac Chukwu, the Ojiowhor (Spiritual head) of Rumuesare Eneka, who intervened and admonished the plaintiffs for such misconduct. The spiritual head later pleaded with the Defendants to permit the plaintiffs to reap the crops already planted on the land for that farming season only. The plaintiffs never interfered with the land again.